Hemp products are legal where Marijuana isn't but drug tests can't tell the difference
In Alabama, a woman was not allowed to be left alone with her newborn.
In North Carolina, a man’s employment offer was rescinded. In Wisconsin, a woman was fired from her job. All had tested positive for THC, the main psychoactive ingredient in marijuana.
Failed drug tests have long cost people jobs, and worse. But each of these people say that they were within their rights. It wasn’t weed they had used: it was hemp products, purchased legally at a gas station or store, to manage pain, relieve anxiety, aid sleep — or for a host of other perceived benefits.
Even though hemp was legalized by the federal government six years ago, The Examination, AL.com, and the Milwaukee Journal Sentinel have found that hemp products like vapes and gummies that contain compounds like CBD and delta-8 can still trigger standard drug tests.
First, they are legally able to have up to 0.3% of what has long been singled out as the psychoactive compound in marijuana: delta-9 THC. Through processing, that percentage is often even higher.
Second, the chemical structure of delta-8 mimics delta-9 THC, and can trigger a positive result.
“The only difference is the position of the double bond in the molecule,” said Lukasz Ciesla, an assistant biology professor at the University of Alabama.
As the market and access to these products grow, so do prospective consequences for people in states where marijuana remains illegal. Reporters spoke to several people who requested anonymity for fear of further repercussions, like Madeline in Wisconsin, about what’s at stake.
Madeline, which is not her real name, was working at a food manufacturing facility in central Wisconsin last year when a large piece of equipment fell on her head and pinned her.
To ease the pain of her injuries, she took gummies made with cannabinol, advertised as a legal aid for sleep and pain management, according to her attorney Aaron Halstead. Cannabinol, like delta-8, is derived from hemp.
When Madeline's symptoms didn’t improve that weekend, she went to the emergency room. Shortly after, the company ordered her to take a drug test.
The test came back positive for marijuana. The company fired Madeline.
Now, Madeline has no job, is battling a year-old legal case, and is still managing medical costs from her injuries, according to Halstead. He spoke on her behalf to avoid potentially jeopardizing her ongoing case.
“Our claim is that she was terminated for the use of a lawful substance, which is illegal under Wisconsin statute,” Halstead said.
He added: “That would be akin to testing someone, finding nicotine in their body and firing them for smoking cigarettes."
The employer has denied wrongdoing. Because of testing limitations, reporters cannot confirm what Madeline and other people in this story consumed.
The confusion can be traced back to the Agriculture Improvement Act, also known as the farm bill, which legalized hemp at the federal level in 2018. Since then, manufacturers have saturated the market with all kinds of new products, some that can even deliver the same or a similar high as marijuana.
In April, the Journal Sentinel and media partners found a severe lack of consumer-facing information about these products. People rely on vague wording on packaging, advice from smoke shop or gas station employees, and online message boards for guidance. States have seen increased calls to poison centers, and federal lawmakers are scrambling to rein in sales amid a near-total lack of oversight.
Lawmakers and legal experts who helped pass the 2018 farm bill — like Rep. Glenn Grothman — say they had no idea what they were unleashing.
Anyone who uses a legal hemp product, regardless of what it says on the label, might fail tests made to detect marijuana.
Earlier this year, 13News, an Indiana news organization, tested seven delta-8 products from area smoke shops and gas stations and found that five of the samples contained delta-9 THC that exceeded the state’s legal limit.
The industry has even innovated to create “hemp-derived delta-9” products, which are now widely available for sale. Some contain even more THC than would be allowed under state laws.
The smell test
It’s not just the chemical makeup; hemp products can also look and smell the same as marijuana, and provoke run-ins with the judicial system.
Maj. Mark Melson of the Texas Department of Public Safety’s criminal investigation division told the Texas Senate State Affairs Committee hearing earlier this year that it’s difficult for state troopers to enforce drug laws.
“Drug-sniffing canines are unable to make the distinction between hemp and marijuana, and from an officer’s perspective, it’s not possible to make a distinction between legal and illegal based on sight and smell,” Melson testified.
"It’s not possible to make a distinction between legal and illegal based on sight and smell."
Maj. Mark Melson of the Texas Department of Public Safety
North Carolina’s state bureau of investigations was among many to immediately recognize that it could not distinguish marijuana from hemp when hemp became legal.
In a 2019 memo, the agency noted that this would challenge the authority of prosecutors as well as law enforcement officers who pull people over, search and seize, or make arrests without a warrant under the suspicion that a person has or is using marijuana.
If the defendant says that they have legal hemp products, not marijuana, “from small amounts to trafficking amounts of plant material,” the judicial system cannot prove otherwise, according to the memo.
“The inability for law enforcement to distinguish the difference between hemp and marijuana is problematic in all marijuana prosecutions,” the statement reads.
By 2022, North Carolina legalized hemp and CBD-related products in alignment with the federal government. But conflicts around legal consumption and lack of sufficient testing remain.
Scott, which is not his real name, moved to North Carolina from California last year. In February, he was offered a position as a manufacturing associate at a biopharma company, a proposal that was reviewed by The Examination. All that remained was a standard pre-employment drug test, which came back positive for THC.
A few days before his start date, he got an email from human resources.
“Due to you testing positive for marijuana on your pre-employment drug test, we are rescinding our offer of employment,” the representative wrote.
“The only thing I was consuming was federally legal hemp,” Scott said, “and the [HR] person immediately was like, ‘So, marijuana?’ And I said ‘No, federally legal hemp, delta-8 and CBD products’.”
Scott said he had been using these products to mitigate post-traumatic stress disorder, specifically the depression and anxiety that can lead up to flashbacks and panic attacks. After his offer was rescinded, “I had to resort to taking out loans, I maxed out my credit card, I almost ended up homeless,” he said.
As with Madeline, reporters could not confirm that Scott consumed hemp-made products, as he claims.
Alternative to pharmaceuticals
In Alabama, Sarah — also not her real name — had just given birth to her second child in July 2023 when she learned the hospital had administered a drug test, and it came back positive for THC.
“I said ‘OK, I did hit a delta-8 pen, but that was it,’” Sarah said in an interview with AL.com. “They said, ‘We do have to test the baby, it’s hospital policy. Because you tested positive, we have to test the baby as well.’”
Alabama, where marijuana remains illegal, is among the most punitive states regarding drug use during pregnancy; mothers can face criminal charges for endangering a fetus if they are found to have used drugs.
Sarah’s baby tested positive, too. So did her husband.
Social workers asked them to give temporary custody to the husband’s parents, more than two hours away, near Huntsville.
Sarah said she started using delta-8 after she broke her leg in a golf cart accident. Doctors prescribed opioids for pain, she told AL.com, then an anti-nausea drug Zofran for morning sickness. She said delta-8 treated both symptoms with fewer concerns about side effects.
Her husband said he began using delta-8 for chronic pain after serving in the U.S. Army.
The two of them say they did everything they could to comply with social workers after their children were sent to live with their grandparents, and were often paying out of pocket for drug tests and drug assessments.
They had hoped that as long as they were accommodating, and could show they were not using marijuana, social workers would close their case. But that did not happen, and weeks turned into months.
“We love nothing more than our role as parents. It was completely ridiculous that we were being run through the gauntlet for a legal product,” Sarah said in retrospect.
Honesty and flawed policies
Between the lack of oversight and rampant market growth, some hemp products have even been characterized by the U.S. Food and Drug Administration as “a big human guinea pig experiment,” because they lack information about how they are made and how potent they are.
Without better guidance, police and courts are likely to disproportionately charge Black hemp users under marijuana statutes, legal experts say.
Historically, people of color are more likely to face prosecution for marijuana possession. In 2020, the American Civil Liberties reported that Black people are more than four times as likely as white people to be arrested for marijuana possession in Wisconsin, despite comparable national marijuana usage rates.
“Leaving that deference to law enforcement results in a lot of racial disparities around who is given the benefit of the doubt with hemp and who's not,” said Jaelyn Miller, an attorney and community organizer with Emancipate NC, a Durham-based nonprofit.
Wauwatosa Police Department Sgt. Abby L. Pavlik said in an email that consumers should know that delta-8 and similar products are "not a controlled substance in Wisconsin, so simple possession or usage would not be subject to enforcement action."
But because hemp products can be nearly indistinguishable from real marijuana, Pavlik advises people to keep their packaging and receipts in case of law enforcement contact.
When it comes to the issue of employment, Rod Kight, an attorney who represents hemp businesses throughout the U.S., says that the state prohibits employers from discriminating against a person for using any legal products, especially during non-working hours.
Coupled with the inability of standard tests to establish what is legal and what isn’t, “it can sometimes be difficult for an employee to assert [their] rights under this statute, especially when the discrimination involves a failure to hire,” wrote Kight via email.
As for Sarah and her husband, they learned that their case had been scheduled for a hearing in front of a judge about two months after the children moved to their grandparents’ house.
“When I got the call that we needed to come to court, I remember breaking down and being like, why?” Sarah said. “What have we done? We had clean drug tests at this point. Why?”
Sarah hired a private attorney and arrived with a sheaf of clean drug tests and reference letters from friends and family. To her relief, the judge looked at the evidence and said that the family could be reunited.
Now the couple is expecting their third child. This time, she said she wants to deliver at home.
